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Old 20th Sep 2015, 22:21
  #241 (permalink)  
Sunfish
 
Join Date: Aug 2004
Location: Melbourne, Australia
Posts: 7,380
Arm out the window makes Two arguments in favour of CASAs current regulatory system.

" The rules aren't all that hard to understand and comply with and most of us know when we're doing the wrong thing.", and

"The gist of Sunfish's argument is, it seems to me from that last post, that he wants rigid rules with no room for interpretation, which will remove the possibility of CASA officers either being lenient or harsh depending on their wishes."

The first part of the first argument - that the rules are understandable is bollox and needs no further evidence.

The second part of that argument is insidious; "most of us know when we are doing the wrong thing".

In other words, we know what the regulations mean and if we do not comply with them then we have guilty minds - mens rea, and thus are ripe for punishment.

This neatly encapsulates CASAs entire regulatory stance.

What should have been stated was :" Everybody understands the rules and most of us know when we are complying with them". That is the desired end state and removes the guilty mind assertion that automatically tags all infringers as criminals - even "criminals who haven't been caught yet" to use CASAs own words.

The second argument - that flexibility in enforcement is a good thing is about matters both of proportion and procedure.

YEs, FOI's and AWI's need flexibility, but that flexibility needs to be carefully bounded by a written policy (not fckuing philosophy") that describes in detail what the discretions are and how they should be applied. The usual rider at the end of such instructions is that any departure from policy has to have a written justification.

Now to procedure. When the traffic police pull me over for speeding. Strictly speaking, they have no more than Two options. They can sometimes give me a warning, or write me a ticket.

They do not have the right to make up a penalty on the spot or in cahoots with senior management and decide that they want to strap me to a hot exhaust pipe or send me for "counselling" or make me reset my licence test at their whim.

CASA on the other hand can construct its own fiendish set of punishments as it did with Dominic James - and it gets to be the torturer as well! This is plain wrong!

The "show cause" process is a perfect example, can the police cart me off to the station at whim and interrogate me until I self incriminate? Not without strict procedural rules they can't.

Yes, there does need to be discretion and nuanced enforcement, but it belongs in policies not philosophies.

My local police flashed his lights at me the other day, I was Ten kmh over. My police officer relative blips his siren when he sees a driver talking on their mobile. CASA should be doing more of the same.
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